On April 29, four national security offenders, Claudia Mo Man-ching, Kwok Ka-ki, Jeremy Tam Man-ho, and Gary Fan Kwok-wai, were released from custody, having served their sentences of imprisonment. Together with 41 other anti-China activists, they were convicted of conspiring to commit subversion in 2020 by plotting to take control of the Legislative Council, wreck the “one country, two systems” governing policy, and provoke a constitutional crisis.

The 45 offenders (31 of whom pleaded guilty) received sentences of imprisonment ranging from four years and two months (Mo, Kwok, Tam, Fan and Andy Chui Tsz-kin) to 10 years (the mastermind, Benny Tai Yiu-ting).

Other conspirators are expected to be released shortly, including Joshua Wong Chi-fung, Alvin Yeung Ngok-kiu, Jimmy Sham Tsz-kit and Gwyneth Ho Kwai-lam.

It must be hoped that the offenders have learnt their lesson and seen the error of their ways. The penal system has always worked on the assumption that imprisonment is both punitive and rehabilitative, and the Correctional Services Department (CSD) prioritizes reform. Although this may not be too difficult in the case of young offenders or those who want to learn new skills for use after release, there are always tough nuts.

Inmates who are hardened criminals or are otherwise set in their ways can be difficult to rehabilitate, and there is only so much the system can do for them.

If, moreover, individuals have committed crimes against society that are politically motivated, they may also be resistant to reform. The best that can be hoped for is that the prison experience will have had a salutary effect, and that they will behave themselves upon release even if they have not repented of the views that led them astray. However, they may still pose risks to society. This dilemma was partially addressed when the Safeguarding National Security Ordinance (SNSO) was enacted in 2024.

Although prison inmates invariably qualify for a remission of sentence of up to one-third in recognition of their “industry and good conduct”, there is now a restriction for national security offenders. The CSD commissioner will only grant remission if he is satisfied that it will not be contrary to the interests of national security. Moreover, he will not, unless so satisfied, refer cases to the post-release supervision board, which considers the suitability of prisoners for early release under appropriate supervision.

In determining the national security question, the CSD commissioner is advised by the Committee for Safeguarding National Security.

When the SNSO was introduced, it was explained that one of the reasons restrictions on remission and early release under supervision were necessary was because there had been cases in which national security suspects had repeatedly endangered national security.  

If, therefore, the authorities consider there is a real risk of recidivism among national security offenders which needs to be countered, the introduction of a register could provide the way forward

Similar restrictions exist elsewhere, including the United Kingdom, a trailblazer in this area. For example, under its Terrorist Offenders (Restriction of Early Release) Act 2020, the authorities only allow the early release of prisoners convicted of terrorist offenses if satisfied their detention is no longer necessary for public protection.

However, Singapore has gone further than either Hong Kong or the UK. On Feb 5, 2024, it enacted legislation entitling the authorities to detain “dangerous offenders” indefinitely, even if they have completed their prison sentences. It applies to adult offenders considered at risk of reoffending after completing their sentences. They can now be detained indefinitely until the home affairs minister considers they are no longer a threat to the public.

Although Singapore-style preventive detention is unlikely in either Hong Kong or the UK (both, unlike Singapore, have ratified the International Covenant on Civil and Political Rights), the problem of recidivism is real and should be confronted.

Although no statistics are available for national security offenders (it is still early days), the CSD has reported a significant recidivism rate for those convicted of other offenses. In 2022, for example, the percentage of readmission of local persons in custody to correctional institutions following conviction for a new offense within two years of discharge was 21.8 percent. Although this was down from 39.9 percent in 2000, it showed there was still no room for complacency.

There is currently no dedicated mechanism for monitoring national security offenders who have completed their sentences, even when they are still considered an actual or potential threat. However, the UK has again shown a possible way forward.

In 1997, the UK created its Sex Offenders Register (SOR). It enables the police to monitor offenders once they leave prison, thereby reducing the risks they may still pose to society. The program requires sex offenders to register with the police upon release from prison and to provide personal details (including home address, bank accounts, and travel documents). The police can visit the individual’s home at any time and they must be notified if there is a change of address or if he or she plans to travel abroad.

The time spent on the SOR is related to the court’s sentence. If, for example, the length of the offender’s imprisonment is for 30 months or more, it will be for life. If sentenced to between six and 30 months’ imprisonment, it will be for 10 years. If the sentence is less than six months, it will be for seven years.

If a National Security Offenders Register were to be created, along the lines of the UK’s SOR, it would go a long way toward neutralizing any continuing threats to national security posed by offenders who have completed their sentences. It would enable the police to keep tabs on them, and the individuals concerned would know they needed to be careful. If, therefore, the authorities consider there is a real risk of recidivism among national security offenders which needs to be countered, the introduction of a register could provide the way forward.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.